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Nov. 4 — A federal district court has declined to block enforcement of a New York law that allegedly prohibits voters from posting selfies taken in polling places on social media ( Silberberg v. Bd. of Elections of N.Y. , 2016 BL 367670, S.D.N.Y., No. 16-cv-8336 (PKC), 11/3/16 ).
Three New York residents had alleged in an Oct. 26 complaint against the New York State Board of Elections that the law, which bans voters from showing others their completed ballot, restricts their First Amendment rights.
“This action was commenced 13 days before the presidential election, even though the statute has been on the books longer than anyone has been alive,” Judge Peter Kevin Castel of the U.S. District Court for the Southern District of New York said Nov. 3. “A last minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election.”
The decision highlights the difference between laws specifically banning ballot selfies—which other courts have held unconstitutional—from general bans on ballot exposure. It follows an Oct. 28 decision by the U.S. Court of Appeals for the Sixth Circuit, which stayed an injunction against a Michigan law similar to New York's until after the election ( Crookston v. Johnson, 6th Cir., No. 16-02490, 10/28/16 ).
The three New York voters asked the court to enjoin the state's Board of Elections from enforcing N.Y. Elec. Law § 17-130(10), which makes showing a completed ballot to another a misdemeanor. They said that they wish to take “ballot selfies” when they vote on Nov. 8 and that the law unconstitutionally restricts their free speech rights.
The court said the law is a reasonable means to ensure the integrity of the election and ballot secrecy. Allowing voters to take ballot selfies at polling places could cause unnecessary delays during the election process, the court said. Those taking selfies may unintentionally capture ballots of other voters without their knowledge, the court said.
The court distinguished the case from Rideout v. Gardner, First. Cir., No. 15-02021, 9/28/16 , in which the U.S. Court of Appeals for the First Circuit ruled that a New Hampshire law banning voters from posting images of their marked ballots on social media wasn't narrowly tailored to the state's purported interest in preventing a potential problem of voter coercion.
Rideout concerned a recently-enacted statute that specifically banned ballot selfies, the Silberberg court said. “In contrast, the ban on showing another person a completed ballot has been in place in New York for 126 years and does not target any particular technology,” the court said.
The court also said that blocking enforcement of the law so close to the election would cause confusion among poll workers and voters and “seriously disrupt” the voting process. “Requiring Defendants to make substantial changes to election policies at the eleventh hour is simply unreasonable, particularly given the fact that the plaintiffs could have brought their challenge several months or years ago,” the court said.
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